EMPLOYMENT AGREEMENT THIS AGREEMENT is made as of the 6th day of December 2007.
THIS
AGREEMENT
is made
as of the 6th
day of
December 2007.
BETWEEN:
▇▇▇▇▇
▇▇▇▇▇▇▇
of
the
City of Lake Forest, Florida
(hereinafter
referred to as the "Employee")
AND:
a
corporation incorporated under the laws of Canada
(hereinafter
referred to as the "Employer")
WHEREAS:
The
Employer wishes to employ the Employee and the Employee wishes to serve the
Employer upon the terms and subject to the conditions herein
contained.
NOW
THEREFORE
in
consideration of the premises and the mutual covenants herein and other good
and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged by each of the parties, the parties hereto covenant and agree
as
follows:
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1.
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DEFINITIONS
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In
this
agreement, unless the context otherwise specifies or requires, the following
terms shall have the following meanings:
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1.1
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"Agreement,"
"hereto," "herein," "hereof," "hereunder"
and similar expressions refer to this Agreement and not to any particular
section or any particular portion of this Agreement and includes
all
schedules attached to this
Agreement;
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1.2
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“General
Manager”
shall mean the General Manager of Career
Networks;
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1.3
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"Court"
shall mean a Court of competent
jurisdiction;
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1.4
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"Parties"
shall mean the Parties to this Agreement and "Party" shall mean one
of the
Parties to this Agreement.
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2.
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EMPLOYMENT
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2.1
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The
Employer agrees to employ the Employee and the Employee agrees to
act as
General Manager or in such other employment as the Employer and the
Employee may from time to time agree and the Employee agrees to serve
the
Employer upon the terms and subject to the conditions set out in
this
Agreement.
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2.2
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The
Employee specifically undertakes and agrees with the Employer that
he
shall be responsible for the
following:
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2.2.1
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for
fulfilling the title and role of the General Manager of the Employer;
and
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2.2.2
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such
other duties as may be reasonably
required.
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3.
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TERM
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3.1
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The
renewal terms of this Agreement shall be a period of one (1) year
from the
date hereof. Unless written notice is given by either party at least
ninety (90) days before the end of the Term or any one (1) year extension
thereof (each, a “Renewal Term”), that they wish this Agreement to
terminate at the end of the Initial or respective Renewal Term, whichever
may apply, this Agreement will be automatically extended by successive
Renewal Terms. Any references herein to the “Term” shall include both the
Initial Term and any and all Renewal Terms. In the event that this
notice
is given by the Employer and not the employee, during the initial
term,
such notice shall be deemed termination of Employee's employment
other
than for cause and the Employee shall be entitled to the payments
set
forth in section 10.1.3 hereof .
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4.
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REMUNERATION
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4.1
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In
consideration of the Employee’s undertaking and the performance of the
obligations contained in this Agreement, the Employer shall, unless
otherwise agreed upon by all parties to this Agreement, pay and grant
the
following remuneration to the
Employee:
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4.1.1
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Base
Salary.
The Employee shall be entitled to receive a salary, not less than
$250,000.00 (U.S.) per year, effective January 1,
2008.
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4.1.2
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Bonus. In
addition to the base salary specified in section 4.1.1 the Employee
shall
be entitled to an aggregate annual bonus of up to $150,000.00 based
on
agreed targeted goals from senior management. The Bonus will be calculated
with 50% representing organic revenue goals; 40% represents contribution
margin goals; 10% timely completion of action items. See Schedule
B Career
Networks Compensation Plan.
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4.1.3
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Stock
Options.
In
addition to the base salary outlined in section 4.1.1 the Employee
shall
be granted a stock option to purchase 400,000 shares of common stock
of
the Employer (the “Option Shares”) at a price that is the closing price on
the NASDAQ market on the date of the option grant. These options
shall
vest immediately December 6, 2007.
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4.1.4
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Restricted
Stock Units: In
addition to the base salary outlined in section 4.1.1 the Employee
shall
be granted 100,000 Restricted Stock Units (the “RSU’s”). These RSU’s shall
vest immediately.
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5.
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BENEFITS
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5.1
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In
consideration of the Employee’s undertaking and the performance of the
obligations contained in this Agreement, the Employer shall, unless
otherwise agreed upon by all parties to this Agreement, pay and grant
the
following benefits to the Employee:
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5.1.1
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Paid
Time Off.
The Employee shall be entitled to paid time off of three (3)
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5.1.2
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Other
Benefits. The
Employee shall be entitled to participate in all benefit programs
provided
by Employer to its executives. The Employer shall pay for single
coverage
premiums for the Employee for health and dental (if any) insurance
offered
by the Employer.
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5.1.3
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Expenses.
The Employer shall reimburse the Employee for all reasonable and
necessary
business expenses, including but not limited to cellular phone expenses,
upon the presentation to the Employer of appropriate written documentation
and receipts.
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6.
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ATTENTION
TO DUTIES
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The
Employee shall devote his whole working time and attention to the Employer
during the Term of this Agreement and will not engage in any other capacity
or
activity which, in the sole opinion of the Employer acting reasonably, would
hinder or interfere with the performance of the duties of the
Employee.
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7.
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CONFIDENTIALITY
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The
parties acknowledge that in carrying out his duties under this Agreement, the
Employee will have access to and become entrusted with confidential information
regarding the business plans and operations of the Employer, computer systems
and technology, unique methodology and other proprietary information. The
Employee acknowledges that the right to maintain such detailed confidential
information constitutes a proprietary right, which the Employer is entitled
to
protect. Accordingly, the Employee shall not, during the Term of this Agreement,
or at any time thereafter, disclose any of such detailed confidential
information or trade secrets of the Employer to any person or persons, firm,
association or corporation, nor shall the Employee use the same for any purpose,
in either case, except on behalf of the Employer. Notwithstanding the foregoing,
the obligations of the Employee in this Section 7 shall not apply to
confidential information (i) which at the date hereof or thereafter becomes
a matter of public knowledge without breach by the Employee of this Agreement;
or (ii) which is obtained by the Employee from a person, firm, or entity
(other than the Employer or an affiliate of the Employer) under circumstances
permitting its use or disclosure to others.
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8.
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OWNERSHIP
OF INVENTIONS
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8.1
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The
Employee shall promptly communicate and disclose to the Employer
all
inventions, improvements, modifications, discoveries, designs, formulae,
methods and processes made, discovered or conceived by the Employee
either
alone or jointly with others, during the period of his employment
with the
Employer, providing the same relate to or are capable of being used
by the
corporation or any affiliate thereof in the normal course of their
businesses.
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8.2
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The
Employee acknowledges and declares that all inventions, improvements,
modifications, discoveries, designs, formulae, methods, processes,
as are
described in section 8.1 hereof, and all patents and patent applications
relating thereto are the property of the Employer and hereby assigns
to
the Employer all of the right, title and interest of the Employee
in any
such inventions, improvements, modifications, discoveries, designs,
formulae, methods and processes, and in any patents or patent applications
relating thereto. The Employee shall, at the Employer’s expense, execute
all instruments and documents and do all such further acts and things
as
may be necessary or desirable, in the Employer's opinion to carry
out the
provisions of this section.
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9.
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NON-COMPETITION
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The
Employee shall not, without prior written consent of the Employer for the period
of his employment hereunder or for a period of one (1) year following the
termination of this Agreement or any renewal hereof, for any reason be it for
cause or not, either alone or in conjunction with any individual, firm,
corporation, association or any entity, except for the Employer, whether as
principal, agent, shareholder, employee or in any other capacity whatsoever,
perform the duties of or provide the services as are described in section 2.2
hereof in a business which competes with the Employer, within any geographical
location where the Employer has carried on business or expended time and
personnel and financial resources. Furthermore, the Employee also agrees that
upon the termination of his employment he will not attempt to hire or encourage
to leave their employ, any of the Employer's other employees. Notwithstanding
the foregoing, the Employee shall not be precluded from competing with the
business of the Employer in the event his employment is terminated by the
Employee for good reason or by the Employer other than for cause, unless the
Employer provides the applicable compensation and benefits set out in section
10.1.3 hereof, in which case, the Employee shall be precluded from competing
as
described in this section 9 until such time as such compensation and benefits
are terminated.
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10.
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TERMINATION
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| 10.1 |
The
parties understand and agree that employment pursuant to this
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Agreement
may be terminated during the Term in the following manner in the specified
circumstances:
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10.1.1
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by
the Employee without good reason (as defined below), on the giving
of not
less than one (1) month prior written notice to the Employer, which
the
Employer may waive, in whole or in
part;
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10.1.2
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by
the Employee for good reason on the giving of not less than one (1)
month
prior written notice to the Employer, if the Employer has not cured
the
event giving rise to good reason by the end of such notice period.
For
purposes of this Agreement good reason shall mean, absent the Employee’s
prior written consent: (i) the Employer’s failure to timely provide the
Employee with the salary, bonus and equity as set forth in section
4.1
hereof or to provide benefits to the Employee in accordance with
section
5.1 hereof; (ii) a material breach by the Employer of this Agreement
or
any other agreement with the Employee; (iii) a material diminution
by the
Employer in the Employee’s title, responsibilities, authority or reporting
structure; (iv) a requirement that the Employee relocate his home
to more
than 35 miles away from his home in New York; or (v) failure of the
Employer to ensure that any successor or assign of the Employer agrees
in
writing to be bound by the terms of this Agreement. If the Employee
terminates his employment for good reason, he shall be entitled to
the
payments set forth in section 10.1.3 hereof, to be provided within
thirty
(30) days after his termination;
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10.1.3
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by
the Employer in its absolute discretion without cause upon not less
than
one (1) month prior written notice to the Employee, on giving the
Employee
a payment equal to (i) six (6) months salary at the rate in effect
on the
Employee’s termination date; (ii) the value of six (6) months of benefits
and entitlements the Employee was enjoying as of his termination
date
(including but not limited to the cost to Employee to pay for six
(6)
months of COBRA payments for health and dental (if any) family insurance
coverage); and (iii) all salary, benefits and entitlements to which
the
Employee is entitled in accordance with any relevant statute
or
law. The payment representing this aggregate amount shall be paid
within
thirty (30) days from notice provided
herein;
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10.1.4
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by
the Employer for cause. The parties agree that for the purposes of
this
Agreement, “cause” shall mean the following, as reasonably determined by
the Employer in good faith, and that the Employee shall be terminated
immediately upon written notice for such
cause:
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10.1.4.1
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any
material breach of the provisions of this Agreement or of the established
policies of the Employer known to the Employee in the performance
of his
duty under this Agreement;
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10.1.4.2
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any
intentional or grossly negligent disclosure of any confidential
information as described in section 7 hereof, by the
Employee;
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10.1.4.3
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in
carrying out his duties hereunder, the Employee; (i) has been grossly
negligent, or (ii) has committed willful gross
misconduct;
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10.1.4.4
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personal
conduct on the Employee’s part which is of such a serious and substantial
nature that, as reasonably determined in good faith in the sole discretion
of the Employer, it would materially injure the reputation of the
Employer
if the Employee is retained as an Employee;
or
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10.1.4.5
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any
and all omissions, commissions or other conduct, which would constitute
cause under applicable law, in addition to the specified
causes.
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10.2
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The
Parties understand and agree that the giving of notice or the payment
of
termination pay, and severance pay, as required by the Employer to
the
Employee on termination shall not prevent the Employer from alleging
cause
for the termination.
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10.3
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The
Employee authorizes the Employer to deduct from any payment, any
amounts
properly owed to the Employer by the Employee by reason of advances,
loans
or in recommence for damages to or loss of the Employer's property
and
equipment, save only that this provision shall be applied so as not
to
conflict with any applicable law or
legislation.
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11.
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RESULTS
OF TERMINATION
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11.1
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If
this Agreement is terminated for cause, as described in section 10.1.4
hereof, the Employee shall be entitled to receive his remuneration
to the
date of such termination for cause, including any and all vacation
pay and
bonuses earned to date.
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11.2
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If
this Agreement is terminated upon written notice as described in
paragraphs 10.1.1, 10.1.2, and 10.1.3 hereof, the Employer shall
pay to
the Employee to the end of the notice period his salary and at the
end of
the date terminating the notice provision, the Employer shall pay
to the
Employee vacation pay equivalent and any other monies due under applicable
United States federal or state law, as well as any and all amounts
to
which he may be entitled pursuant to sections 10.1.2 or 10.1.3.
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12.
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MEDIATION/ARBITRATION
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12.1
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Should
any dispute or disagreement of any kind arise at any time; (i) regarding
the rights and liabilities of the Parties hereof or with respect
to the
interpretation, validity, construction, meaning, performance, effect
or
application of this Agreement, as amended from time to time; or (ii)
between the Employer and the Employee, the Parties agree that good
faith
negotiations shall take place between the Employer and the Employee.
If
such good faith negotiations have not resolved the dispute or disagreement
within a reasonable period of time, either Party may request mediation
between the Parties, or either Party may refer the dispute or disagreement
directly to arbitration without going to
mediation.
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12.2
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The
mediator shall be agreed upon by the both Parties. In the event that
the
Parties are unable to agree upon the mediator, the dispute or disagreement
shall be referred to arbitration in accordance with this
section.
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12.3
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All
discussions before the mediator shall be non-binding, confidential
and
without prejudice to the position of either Party. The Parties agree
that
if the mediation process does not result in a satisfactory solution
of the
dispute or disagreement after the lesser of either; (a) ten (10)
hours of
mediation, or (b) thirty (30) days from the commencement of the mediation,
then either Party may refer the dispute or disagreement to arbitration
pursuant to the provisions of the American
Arbitration Association's National Rules for the Resolution of Employment
Disputes in effect at the time of the arbitration demand,
in
accordance with the following:
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12.3.1
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the
reference to arbitration shall be to one (1) arbitrator.
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12.3.2
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any
such arbitration shall be held in the city of Ottawa. The arbitration
shall be completely private. The arbitrator shall fix the appropriate
procedures which may include, an oral hearing(s) and any other procedures
the arbitrator deems appropriate. The issue or issues to be decided
by the
arbitrator shall be defined in an arbitration agreement filed on
consent
by the aggrieved party. In the event the Parties to the arbitration
shall
be unable to agree upon the issue or issues to be decided by the
arbitrator in any arbitration pursuant to this paragraph, the arbitrator
shall have jurisdiction to determine the issue or issues to be so
decided.
The Parties shall do all such acts and things as are necessary to
enable
the arbitrator to make a proper finding respecting the matters in
issue.
The arbitrator may order interest on any award and the arbitrator
may
award costs, including attorneys’ fees, to either Party, provided that
such award is permitted by the applicable law governing the underlying
claim. In the absence of any award of costs, each of the Parties
shall
bear their own costs, including attorneys’ fees, of any arbitration
pursuant to this paragraph and one-half of the cost of the arbitrator.
The
arbitrator shall be strictly bound by applicable legal principles
and the
general nature of this Agreement in rendering his/her/its
decision.
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12.3.3
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The
Parties agree that good faith negotiations, mediation and arbitration
shall all be without recourse to the Courts. The award of the arbitrator
shall be final and binding, except that either Party may appeal an
arbitration award to the Courts on a question of law. Judgment upon
the
award rendered by the arbitrator may be entered in any Court having
jurisdiction.
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13.
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RIGHT
TO INJUNCTIVE RELIEF
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As
a
violation by the Employee of the provisions of paragraphs 7 and 9 hereof could
cause irreparable injury to the Employer and there is no adequate remedy at
law
for such violation, the Employer shall have the right, in addition to any other
remedies available to it at law or in equity, to enjoin the Employee in a court
of equity from violating such provisions. The provisions of paragraphs 7 and
9
hereof shall survive the termination of this Agreement.
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14.
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ASSIGNMENT
OF RIGHTS
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The
rights and obligations which accrue to the Employer under this Agreement shall
automatically inure to the benefit of and be binding on its successors and
assigns, whether by operation of law or otherwise. The rights of the Employee
under this Agreement are not assignable or transferable in any manner, except
that any accrued salary or bonus, vested options or other benefits shall be
provided to the Employee’s heirs, beneficiaries or estate, or trustee under any
trust set up by and for Employee.
15. CHANGE
OF CONTROL
| 15.1 |
The
Employer agrees that should there be a change in control of the Employer
during the Employee’s employment with the Employer, all stock options,
RSU’s and restricted stock held by the Employee shall become immediately
vested and exercisable in full. The Employer further agrees that
should
there be a change in control of the Employer and the Employee’s employment
is terminated for any reason save and except for cause, the Employee
shall
receive, any payments or benefits to which he is entitled pursuant
to
section 10.1.3 hereof. For the purposes of this section, “change in
control” shall be defined as such term is defined the Employer’s 2002
Amended and Restated Stock Option Plan.
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| 15.2 |
If
there is a change of control with 6FigureJobs and/or ▇▇▇▇▇ and Associates,
Purello would be entitled to 5% of the proceeds that the Company
makes and
in return Purello would return all his stock options or Purello may
retain
his stock options and forfeit the 5% of
proceeds.
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| 16. |
INDEMNIFICATION
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The
Employer agrees to fully indemnify and defend the Employee against all claims,
liabilities, losses, costs, attorneys’ fees, settlements and damages
(collectively, “Liabilities”) relating to or arising from any Action (as
defined below) should the company by which the Employee was last employed before
the date hereof threatens or take any legal action against the Employee in
relation to section 7 of the Employee’s prior employment agreement with such
company and/or the Employee’s employment with the Employer (any such threatened
or actual actions are collectively referred to as the “Action”). Notwithstanding
the foregoing, the Employer may determine in its sole discretion not to continue
with such a defence if it believes there is no reasonable likelihood of
succeeding with such a defence. In the event the Employee’s employment with the
Employer ceases as a result or consequence of any Action, such termination
shall be without cause and the Employee will be entitled to the payments and
benefits set forth in Section 10.1.3 hereof, and the Employer will nonetheless
indemnify the Employee for all Liabilities relating to or arising from any
Action.
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17.
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CURRENCY
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All
dollar amounts referred to in this Agreement are in United States
funds.
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18.
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AMENDMENT
OF AGREEMENT
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This
Agreement may be altered or amended at any time by the mutual consent in writing
of the parties hereto.
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19.
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TIME
OF ESSENCE
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Time
shall be of the essence hereof.
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20.
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GOVERNING
LAW
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This
Agreement shall be governed by and construed in accordance with the laws of
the
Province of Ontario.
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21.
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HEADINGS
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The
headings appearing throughout this Agreement are inserted for convenience only
and form no part of the Agreement.
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22.
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SEVERABILITY
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The
invalidity or unenforceability of any provision of this Agreement will not
affect the validity or enforceability of any other provision hereof and any
such
invalid or unenforceable provision will be deemed to be severable.
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23.
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ENTIRE
AGREEMENT
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This
Agreement constitutes the entire agreement between the parties and supersedes
all prior and contemporaneous agreements, understandings and discussions,
whether oral or written, and there are no other warranties, agreements or
representations between the parties except as expressly set forth
herein.
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24.
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AGREEMENT
BINDING
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This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective personal representatives, executors, administrators,
successors and assigns.
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25.
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INDEPENDENT
LEGAL ADVICE
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The
Employee acknowledges that he has read and understands the Agreement and
acknowledges that he has had the opportunity to obtain independent legal advice
regarding the terms of the Agreement and their legal consequences.
| 26. |
SURVIVAL
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In
the
event this Agreement terminates for any reason, sections 7, 9, 10.1.2, 10.1.3,
11, 15 and 17 hereof shall survive to the extent necessary to give full effect
to their terms.
IN
WITNESS WHEREOF
this
Agreement has been executed by the parties hereto as of the date first set
forth
above.
SIGNED,
SEALED & DELIVERED
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Witness
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▇▇▇▇▇
▇▇▇▇▇▇▇
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| WORKSTREAM INC. | |
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Per:
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▇▇▇▇▇▇
▇▇▇▇▇
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Title:
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Chief
Executive Officer
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